Barbara A. v. John G.
193 Cal. Rptr. 422, 145 Cal. App. 3d 369, 1983 Cal. App. LEXIS 1970 (1983)
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Rule of Law:
A person has a viable tort cause of action for battery or deceit against a sexual partner who fraudulently misrepresents their sterility, resulting in physical injury to the person, such as an ectopic pregnancy.
Facts:
- Appellant retained respondent, an attorney, to represent her in a family law matter.
- During the course of the representation, appellant and respondent developed a personal relationship.
- On two occasions in June 1978, they engaged in sexual intercourse.
- Before the first instance of intercourse, appellant explained she did not want to become pregnant for emotional and financial reasons and demanded respondent use a contraceptive.
- Respondent replied, “I can’t possibly get anyone pregnant,” which appellant understood to mean he was sterile.
- Relying on this statement, appellant consented to and engaged in sexual intercourse with respondent.
- Respondent's representation about his inability to procreate was false, and he knew it was false.
- As a result of the intercourse, appellant suffered a tubal (ectopic) pregnancy, which required life-saving surgery that rendered her sterile.
Procedural Posture:
- Respondent, an attorney, filed an action against appellant in municipal court for unpaid legal fees.
- Appellant filed a cross-complaint against respondent for damages, including fraud and battery, causing the action to be transferred to the superior court (trial court).
- Appellant filed a first amended cross-complaint.
- The superior court sustained demurrers to some counts but overruled the demurrer to the counts for battery and intentional misrepresentation.
- Following a new appellate decision in an unrelated case (Stephen K. v. Roni L.), the superior court granted respondent's motion for judgment on the pleadings, dismissing appellant's remaining claims.
- Appellant (as cross-complainant) appealed the judgment on the pleadings to the Court of Appeal.
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Issue:
Does a woman who suffers physical injury from an ectopic pregnancy have a tort cause of action against her sexual partner for his fraudulent misrepresentation that he was sterile?
Opinions:
Majority - Barry-Deal, J.
Yes, a woman who suffers physical injury from an ectopic pregnancy has a tort cause of action against her sexual partner for his fraudulent misrepresentation of sterility. Appellant has stated valid causes of action for battery, as her consent was vitiated by fraud, and for deceit. This action is not barred by Civil Code section 43.5, the 'anti-heart balm' statute, because it is not an action for seduction, which concerns the violation of virtue and loss of reputation. Instead, the gravamen of this complaint is a tangible physical injury caused by respondent's misrepresentation. The court distinguished this case from Stephen K. v. Roni L., where a man's suit against a woman for misrepresenting her birth control use was barred. The court reasoned that Stephen K. was based on the public policy of not allowing a child's birth to be the basis of a tort claim between parents, as it would be detrimental to the child. Here, the damages are for the appellant's own severe physical injury, not for the birth of a child. While the constitutional right to privacy protects sexual relations, it is not absolute and does not shield a person from liability for intentionally tortious conduct that causes physical injury to another.
Dissenting - Scott, Acting P. J.
No, a cause of action should not be permitted in these circumstances. Appellant's claim, regardless of its label as battery or deceit, falls squarely within the prohibition of Civil Code section 43.5, which bars causes of action for seduction. The gravamen of the complaint is sexual intercourse induced by a false representation, which is the essence of seduction. The resulting physical injury is merely the damage flowing from this non-actionable wrong. The majority's attempt to distinguish the harm from seduction (loss of virtue) from the physical harm here is unsupported. Agreeing with the policy in Stephen K., courts should not supervise the promises made between consenting adults regarding their private sexual conduct, as doing so constitutes unwarranted governmental intrusion into privacy. Allowing this lawsuit would open the door to limitless litigation; the courts should stay out of the bedroom.
Analysis:
This decision establishes that tort law can apply to harms arising from sexual relationships when there is a fraudulent misrepresentation leading to tangible physical injury. It distinguishes such claims from those barred by 'anti-heart balm' statutes, which typically involve emotional damages like a broken heart or loss of reputation. By differentiating this case from 'wrongful birth' actions between parents (like Stephen K.), the court prioritized compensation for direct physical harm over the policy of shielding parental relationships from tort liability concerning the birth of a child. The ruling signals that the constitutional right to privacy in sexual matters does not immunize a person from liability for intentional torts that cause physical injury to their partner.
